Don’t Speak: If You Want to Be a Judge Someday You’d Better Shut Your Mouth

Yesterday, 52 percent of the Senate voted to allow professor Goodwin Liu’s nomination to a federal appeals court to move forward—which, in the bizarro world that is the filibuster-driven Senate, means that his nomination is effectively dead for the time being. Despite controlling only a minority of the Senate, Liu’s conservative opponents had more than enough seats to keep him from becoming a judge.

It’s not entirely clear why Liu earned such widespread condemnation from Senate conservatives. There is nothing in his record suggesting that he was anything other than an exceptionally brilliant and mainstream nominee. Indeed, conservative legal lion Ken Starr—yes, that Ken Starr of Clinton impeachment fame—called Liu an “extraordinarily qualified nominee” who will serve as a judge “with great distinction.” Liu’s colleague John Yoo—yes, that John Yoo of the Bush administration’s torture memos—called Liu a “very well qualified” nominee who will be a “good judge on the bench.”

Yet if you spent just a few minutes listening to Liu’s opponents, you would think he was the second coming of Mao Tse-tung. Sen. Chuck Grassley (R-IA) literally accused Liu of wanting to make America more like “communist-run China.” Other senators fixated on a pair of law review articles Liu wrote as proof that Liu would use a position on the federal bench to create all kinds of new welfare programs and somehow seize control of America’s schools.

None of these claims are true, but they highlight an unfortunate new reality for judicial nominees. Once upon a time, senators examined a nominee’s record and supported the nominee unless they found some good reason to keep the nominee off the federal bench. This is essentially what Starr and Yoo did when they considered Liu’s career and his scholarship and, finding him to be an entirely mainstream nominee, both made public statements that he should be confirmed.

Yet Liu was held to a very different standard by the Senate. The question was no longer whether Liu belongs on the bench—he unambiguously does—but whether his opponents could find a way to distort his many pages of legal scholarship in order to paint him as some kind of radical. And because Liu is a very prolific scholar, he gave his opponents a whole lot of material to distort.

Consider Sen. Grassley’s bizarre suggestion that Liu wants to make the United States more like communist China. Sen. Grassley’s basis for this claim is an op-ed Liu wrote where he made the banal point that a conservative interest group used the terms “free enterprise,” “private ownership of property,” and “limited government” as “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” As Sen. Grassley tells it, this op-ed somehow proves that Liu actually wants government to eliminate enterprise and private property and convert America into a place where “the government runs everything.”

Likewise, the suggestion that Liu would somehow create massive new welfare programs by judicial fiat stems from an article where he actually called for the opposite. That article explicitly calls for “legislative supremacy” in defining the scope of welfare rights, and it explains that it would have been utterly inappropriate for the courts to second-guess Congress’s decision to roll back welfare rights in its 1996 welfare reform law.

Liu’s article also explains that the Constitution provides certain protections that ensure fair and equal access to welfare—but this view is shared by conservative Justice Antonin Scalia. Scalia joined the Supreme Court’s decision in Saenz v. Roe, which struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. In other words, if Liu’s stance on constitutional welfare rights disqualifies him from the federal bench, it also disqualifies Scalia.

There is a sad lesson for future presidents to learn from these distortions: Don’t nominate anyone who has ever had anything to say about the Constitution. A body of published work, no matter how moderate, will inevitably contain dozens of statements that can be taken out of context and wielded to bludgeon the nominee.

It’s unclear why so many senators felt the need to distort Liu’s mainstream record—America gains nothing when a brilliant scholar is kept from judicial service because of views that he does not even hold. Unfortunately, however, there is significant evidence that the Liu filibuster was motivated entirely by a desire for payback.

Five years ago, when Justice Samuel Alito faced a confirmation hearing, Liu testified regarding Alito’s record on criminal justice issues. Several of the examples Liu cited were shocking, including a legal memorandum Alito wrote arguing that cops should be allowed to shoot a fleeing purse-snatcher in the back to prevent him from getting away with 10 stolen dollars. But every single word of Liu’s critique of Alito was scrupulously accurate and supported by scholarly citations.

Many senators, including Lindsey Graham (R-SC) and Johnny Isakson (R-SC), who previously called judicial filibusters unconstitutional, cited Liu’s testimony against Alito as their reason for abandoning their constitutional objections to filibustering judicial nominees and opposing Liu. The lesson from this experience is clear: Don’t tell difficult truths about powerful officials if you hope to survive a confirmation hearing someday.

Because of Liu’s ill treatment, hundreds of America’s brightest and most ambitious lawyers will take these lessons to heart. They will avoid public comment on important issues, even if the public could benefit greatly from their informed expertise. They will eschew public service and refuse to work for advocacy groups that might identify them with one political view or another. And when the Senate appears poised to confirm a manifestly unfit nominee to a job that will impact millions of ordinary Americans, they will hold their tongues lest their own careers be threatened.

And the silent Lius of the future will hardly be the only people to suffer for this silence. Democracy depends on an informed electorate, fueled by uncowed voices who share their expertise with our nation. Congress depends on these same voices to advise them on confirmation votes and other important matters. America is richer when brilliant minds like Goodwin Liu speak freely, when they publish their insights for everyone to read, and when they publically clash with equally brilliant minds who disagree with them.

But yesterday’s vote sends a very clear message to any of the nation’s brightest constitutional thinkers who hope to someday be able to write legal opinions interpreting the Constitution: stop talking.

Ian Millhiser is a Policy Analyst and Blogger for American Progress, where his work focuses on the Constitution and the judiciary.